Right of First Refusal
By Gary Direnfeld, MSW, RSW
In hotly contested child custody and access disputes, a contentious matter
that often arises is the right of first refusal. Typically this refers
to situations where a parent is unable to meet an obligation for the care of
the child and that parent may then consider the use of a baby-sitter over the
other parent. In such situations, the other parent seeks to have this right
of first refusal to care for their child in lieu of resorting to a baby-sitter.
In these acrimonious disputes, both parents seek to withhold the child from
the other parent even when they themselves are not available. There is such
an animosity, that both do not want to give any perceived advantage of a special
relationship with the child to the other parent by virtue of more time. This
matter also rears its ugly head when one or other parent has a new partner that
the other parent does not accept.
As the parents enter combat over the right of first refusal, the game playing
heats up. If the parent who is unable to meet their obligation uses a grandparent
or allows the child a sleepover with a friend or other family member from their
side, is that contravening this right of first refusal? This becomes a very
sticky point, as both parents can be remarkably manipulative at withholding
or at least not supporting the relationship with the other parent whilst coming
up with ways to beat the rules.
This mess takes on the appearance of two young children fighting over the same
toy and then hanging on to it for dear life to assure the other child doesn’t
swipe it back.
For the children caught in this conundrum, they learn the depths of their parents’
mutual animosity. These children also live in fear, needing to keep secrets
as to the comings and goings of their parents. They are also inducted into the
game-playing and eventually learn to use deception to mitigate their own needs
and wants. Because these children live a life where both parents denigrate the
other though this behaviour, the children suffer low self-esteem which in turn
leads to greater risk of depression or alternately, acting out behaviour either
of which in turn affects school performance. The downward cascade of the child’s
well-being is predictable and palpable.
Typically the best solution is for both parents to address their respective
issues, whether it is unresolved anger at their former partner or jealousy that
a new person may enjoy a relationship with the child. It may well be that one
or both parents have to face their own insecurities that have little to do with
the other parent specifically. Counselling is thus indicated.
In addition to the parents enteringcounselling, the needs of the child may
be served by the parents entering into mediation to resolve conflicts with either
a new set of rules or on a situation-by-situation basis. If parents are resolved
to never come to some middle ground, then a Parenting Coordinator may be of
service to offer the mediation as well as have powers of arbitration to effect
decisions on behalf of the child. The goal is to emancipate the child from the
Where matters are so intractable that the parents cannot be moved in a manner
so as to provide relief to the child, then counselling would be indicated for
the child to help bolster their ego defenses such that they would be less vulnerable
to the contamination of the parental conflict.